DURGADEVI GONORIWALLA Vs. RADHA KRISHNA RAJGHARIA

JUDGEMENT

(1.) The opposite party No. 1 filed an application, under Sec. 145 of the old Code of Criminal Procedure before the Magistrate on November 14, 1973, stating that five rooms on the first floor of the house at 16 P.N. Malia Road, Raniganj, where he was staying since after his purchase of it from the Petitioner and the opposite party No. 2, mother and son, had been forcibly taken possession of by them. He also made a prayer that those rooms might be attached. The learned Magistrate asked the O.G., Raniganj, to inquire and report by November 11, 1973. On November 22, 1973, opposite party No. 1 (first party) moved the Magistrate again whereupon the learned Magistrate asked the B.D.O., Raniganj, to enquire and report. He did not, however, recall the inquiry from the O.C. in terms of his order dated November 14, 1973. The B.D.O. submitted his report and upon consideration of that report the learned Magistrate on December 26, 1973, drew up a proceeding under Sec. 145 and simultaneously ordered attachment of the five rooms. He also appointed the Chairman of the local Municipality as Receiver. The first party moved him again on December 27, 1973, for changing the Receiver. The learned Magistrate revised his order regarding appointment of Receiver and appointed the Circle Inspector, Raniganj, as Receiver in place of the Chairman. The Petitioner filed an application before the Magistrate on January 10, 1974, stating that she had been evicted from the five rooms with her articles by the Circle Inspector of Police on January 8, 1974, and prayed for being put back in possession of the said rooms. The learned Magistrate called for a report from the Circle Inspector and fixed January 15, 1974, for hearing. He also gave notice of that petition to the first -party. He heard both the parties on January 15, 1974 and refused her prayer. She has moved this Court for setting aside the two orders dated December 26, 1973 and January 15, 1974, so far as they relate to attachment of the five rooms, appointment of the Receiver and refusal of her prayer for being restored to possession.

(2.) A Magistrate, after drawing up a proceeding under Sec. 145(1) of the Code, may also order attachment of the subject of dispute if he considers the case to be one of emergency under the third proviso to Sub -section (4) of Sec. 145 pending decision of the case. The learned Magistrate in this case considers the case one of emergency on two grounds, that (a) there is chance of clash between the parties and (b) that there may even be loss of life. He is acting on the B.D.O.'s report. That report does not mention that there will be clash between the parties or that there is any likelihood of loss of life. His report is that - -

(3.) The learned Magistrate relied on non -existing facts to refuse the Petitioner's prayer made on January 10, 1974, by his order dated January 15, 1974. In refusing that prayer he relied on the same report on which he considered the case one of emergency. The report of Circle Inspector dated January 8, 1974, also does not mention any new situation of facts. He states in his order - -